Kapeli v Secretary, Department of Home Affairs [2024] FCA 1246

Kapeli v Secretary, Department of Home Affairs [2024] FCA 1246 File number(s):

Judgment of: O'BRYAN J

Date of judgment: 29 October 2024

MIGRATION – application for a writ of habeas corpus to release applicant from immigration detention – where applicant claims his detention pursuant to s 189(1) of the Migration Act 1958 (Cth) is beyond the Constitutional limits of that power because he is an Aboriginal Australian within the principles stated in Love v Commonwealth; Thoms v Commonwealth (2020) 270 CLR 152 – where applicant was born in Tonga, is a Tongan citizen, does not claim to be of Aboriginal descent and there is no evidence to suggest that he is of Australian Aboriginal descent – where applicant claims to be of Aboriginal descent by virtue of adoption into an Aboriginal community – where applicant claims that s 189 does not authorise his continued detention having regard to NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; 97 ALJR 1005 – whether applicant being detained for the purposes of removal – whether there is no real prospect of the applicant's removal from Australia becoming practicable in the reasonably foreseeable future by reason of the need for continued investigations as to whether he is an Aboriginal Australian – writ of habeas corpus refused Catchwords: STATUTORY INTERPRETATION – construction of s 196(4) of the Migration Act 1958 (Cth) – whether in an application for a writ of habeas corpus the effect of s 196(4) is that the Minister must prove on the balance of probabilities that applicant is not an Aboriginal Australian – construction of s 198 of the Migration Act 1958 (Cth) – interrelationship of ss 198(2B) and 198(5) – whether applicant subject to an extant duty of removal from Australia notwithstanding that the applicant's visa was cancelled under s 501(3A), the applicant has made representations under s 501CA seeking the revocation of the cancellation and the Minister is yet to make a decision with respect to revocation ADMINISTRATIVE LAW – application for a writ of habeas corpus – applicable principles